Norris v Norris

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Mantell,Lord Justice Thorpe
Judgment Date28 July 2003
Neutral Citation[2003] EWCA Civ 1084
Date28 July 2003
Docket NumberCase Nos: (1) B1/2003/0723 (2) B1/2003/1271

[2003] EWCA Civ 1084





(1) The Hon Mr Justice Bennett

(2) Mr Bruce Blair QC Sitting as a

Deputy High Court Judge

Royal Courts of Justice


London, WC2A 2LL


The President

Lord Justice Thorpe

Lord Justice Mantell

Case Nos: (1) B1/2003/0723 (2) B1/2003/1271

(1) Alan John Norris
(2) Penelope Catherine Norris
Warren George Haskins
Lesley Erica Haskins

(1) Mr N. Cusworth (instructed by Jacobs Allen Hammond) for the Appellant

Miss Clare Renton (instructed by Kidd Rapinet) for the Respondent

(2) Mr V. Le Grice QC and Mr S. Webster (instructed by Guillaumes) for the Appellant

Mr M. Pointer QC and Mr Jonathan P. Swift (instructed by Williams Thompson) for the Respondent

Dame Elizabeth Butler-Sloss P. :


The two cases before this Court raise similar issues of general importance, that is to say, the correct approach of the court to the treatment of costs in family financial disputes. One feature relevant to both the cases is that they come within the bracket sometimes described as big money cases. The main issue raised is the proper approach of the court to the making of confidential offers and counter-offers by the parties which are then disclosed to the judge after he/she has made an award in an ancillary relief application, otherwise called 'the Calderbank offers'.


On 11 th April 2003 Mr Norris sought permission to appeal and a long extension of time from the order of Bennett J made on the 28 th November 200On that day Bennett J ordered Mr Norris to pay 80% of the costs of Mrs Norris. Thorpe LJ directed an oral hearing on notice with the appeal to follow if permission and extension of time were granted. On 3 rd June 2003 on the application for permission to appeal by Mr Haskins, made within the required time, Thorpe LJ directed an oral hearing on notice with appeal to follow if permission was granted. In that case Mr Bruce Blair QC, sitting as a deputy High Court judge, ordered Mr Haskins to pay 85% of the costs of Mrs Haskins.

The background to costs orders


The Calderbank doctrine is by now well-known. The case from which it takes its name was decided by this court in 1975, and whilst the views in that case may have been obiter, they were soon adopted as the established procedure in matrimonial financial claims (see McDonnell [1977] 1 WLR 34).


In Cutts v Head [1984] Ch 290, this court reviewed the Calderbank procedures, and decided that they should be applied more generally to civil litigation. Two years later the Calderbank principle was formally written into the Rules of the Supreme Court by the introduction of Order 22, rule 14 and Order 62, rule 9.


Following the civil procedure reforms and the introduction of the Civil Procedure Rules, RSC Order 62 and CCR Order 38 were replaced in relation to family proceedings by Parts 43, 44, 47 and 48 (with some exceptions) of the CPR: Family Proceedings (Miscellaneous Amendments) Rules 1999 (SI 1999/1012).


The relevant part of CPR Part 44 reads as follows

"44.3 Court's discretion and circumstances to be taken into account when exercising its discretion as to costs

(1) The court has discretion as to –

(a) whether costs are payable by one party to another;

(b) the amount of those costs; and

(c) when they are to be paid.

(2) If the court decides to make an order about costs –

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) the court may make a different order.

(3) The general rule does not apply to the following proceedings –

(a) proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; or

(b) proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.

(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –

(a) the conduct of all the parties;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c) any payment into court or admissible offer to settle made by a party which is drawn to the court's attention (whether or not made in accordance with Part 36).

(Part 36 contains further provisions about how the court's discretion is to be exercised where a payment into court or an offer to settle is made under that Part)

(5) The conduct of the parties includes –

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed any relevant pre-action protocol;

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and

(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.

(6) The orders which the court may make under this rule include an order that a party must pay –

(a) a proportion of another party's costs;

(b) a stated amount in respect of another party's costs;

(c) costs from or until a certain date only;

(d) costs incurred before proceedings have begun;

(e) costs relating to particular steps taken in the proceedings;

(f) costs relating only to a distinct part of the proceedings; and

(g) interest on costs from or until a certain date, including a date before judgment.

(7) Where the court would otherwise consider making an order under paragraph (6)(f), it must instead, if practicable, make an order under paragraph (6)(a) or (c)."


The 'general rule' at sub-rule (2)(a) is also disapplied in relation to family proceedings by the Family Proceedings (Miscellaneous Amendments) Rules 1999, r 4(1)(b).


In Butcher v Wolfe and Another [1999] 2FCR 165, this Court reviewed the working of the Calderbank procedure. Although the decision was given before the introduction of the Civil Procedure Rules, Mummery LJ in his judgment helpfully set out at pages 170–171 nine propositions, which included under proposition (6)

"The court has an overall broad judicial discretion on costs."


The issue in that case was the reasonableness or otherwise of the refusal to accept the offer and the question of a counter-offer did not arise. The principle of broad overall judicial discretion is underlined in CPR Part 44.

Family Proceedings — Gojkovic v Gojkovic


We have been told by counsel in the two appeals that the approach to the award of costs in ancillary relief cases, where Calderbank offers have been made, has been dominated by the decision of this court in Gojkovic v Gojkovic (No 2) [1992] Fam 54 and less attention, it appears, has been paid to the Family Proceedings Rules as amended by SI 1999/3491 and the judicial exercise of discretion provided by rules 2.69B and 2.69D (see below).


It is of some importance to know the facts of Gojkovic v Gojkovic (No 1) [1992] Fam 40 and the principles governing the orders for financial relief for wives in 'big money cases' in 1991. The husband in that case had not made full and frank disclosure of his assets which amounted to £4 million not £1 million to which he originally deposed. The final Calderbank offer of £600,000 was made on the 17th January, only the day before the substantive hearing. On the same day the offer was rejected and the husband was informed that the wife was asking for £1 million. The judge awarded the wife a lump sum of £1 million. This was, for those days, a very high award to a wife. The appeal against the award was dismissed by this Court.


The judge made no order as to costs after the 6 th January, the date when the wife's solicitors had rejected an earlier, lower, offer by the husband and had suggested a meeting to try to settle the matter. The judge held that from the 6 th January, both sides had acted reasonably. The wife appealed. A major issue in Gojkovic (No 2) was the absence of a counter-offer by the wife. In my judgment I set out the general principles then applicable to High Court civil proceedings. I said at page 271

"However, in the Family Division there still remains the necessity for some starting point. That starting point, in my judgment, is that costs prima facie follow the event (see Cumming-Bruce LJ in Singer (formerly Sharegin) v Sharegin [1984] FLR 114 at 119) but may be displaced much more easily than, and in circumstances which would not apply, in other divisions of the High Court. One important example is, as the judge pointed out, that it is unusual to order costs in children cases. In applications for financial relief the applicant (usually the wife) has to make the application in order to obtain an order. If the financial dispute can be resolved it is usual, and normally in the interests of both parties, that the applicant should obtain an order by consent; and if money is available and in the absence of special circumstances, such an agreement would usually include the applicant's costs of the application. If the application is contested and the applicant succeeds, in practice in the divorce registries around the country where most ancillary relief applications are tried, if there is money available and no special factors, the applicant spouse is prima facie entitled to, and likely to obtain, an order for costs against the respondent. The behaviour of one party, such as in material non-disclosure of documents, will be a material factor in the exercise of the court's discretion in making a decision as to who pays the costs.

There is, however, a...

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